In a recent article on Political Pistachio, "Are Implied Powers Constitutional?", as expected, the disagreements came flowing in. Usually, when leftists, or conservatives that interpret the Constitution through case law, comment, their posts are laden with profanity, and intentional comments that serve to distract more than to carry on a reasonable conversation. The following comment, however, I approved and appears on the website, and now I would like to pick it apart, revealing the ignorance that oozes through it.
Comment by Reader:
Are Fedex and UPS just hypothetical examples? Or is there an actual law you are talking about? And if so, do these laws fall under the "interstate commerce" umbrella?
Otherwise, there seems to be two main glitches with this states rights, anti-regulation anthem. The first is slavery, on behalf of which the 10th Amendment was touted by an essentially anti-regulation political class. I know we love to use "race" to harness the historiography of slavery, but it was a fundamentally economic system rooted in supply-demand. So can you love Lincoln, the unpopular inhabitant of the moral high ground, despite the fact that that "bastard begotten by power and arrogance" that we call the Civil War established the regulatory tentacles of the federal government in defiance of the 10th Amendment?
The second glitch is immigration, also a fundamentally economic issue in which the federal government also has no implied powers but has, since the Chinese Exclusion Act of 1882, been relied upon as the primary mechanism wherein cultural conservatives (and in many cases white supremacists) have legislated their preferences for their own kind regardless of established constitutional procedures.
Let's break it down:
After asking if my FedEx and UPS examples are hypothetical, he then asks if there is an actual law I am talking about, totally missing the point. If the law is unconstitutional, the law is inconsequential. My discussion about implied powers is regarding the original intent of the United States Constitution, based on the text as it is written, and the context of the time period in relation to definitions of terms. . . which brings us to his quip about interstate commerce.
The assumption by the commenter is that the Commerce Clause is authority enough for the federal government to "regulate" FedEx and UPS because their services cross State lines. However, a deeper examination of the Commerce Clause reveals that his argument is flawed.
When discussing the Commerce Clause, we must remember that the States created the federal government, so their goal was not to create a system to control them in a tyrannical manner, but to ensure the union of States is promoted, preserved, and protected. To understand what I mean, we must take a look at the historical context of the time period, as well as the definitions of the terms used in the clause.
The Commerce Clause was debated, and written into the United States Constitution, at a time when interstate commerce was not flowing freely. States were in dispute with each other, charging tariffs against each other, and enacting protectionism-style legislation to protect their own State's interests.
In Article I, Section 8, where the Commerce Clause can be found, the word used regarding the federal government's authority regarding commerce is "regulate." Regulate, in today's language, means "to control, or to restrict." However, the problem during that time period was that commerce was not flowing as freely as it should, so the need was not for the federal government to be able to restrict and control the flow of commerce, but for the federal government to be involved in a manner that would break up the gridlock. To accomplish this, the federal government would need to be able to act as a mediator, or referee, between the States battling in conflict over interstate commerce.
The word "regulate" comes from the word "regular." To regulate, then, is "to make regular." The 1828 Webster's Dictionary takes the definition a step further, and states that if something is regulated, it is something that is "put in good order." When one considers the historical context regarding interstate commerce of the era, putting interstate commerce in good order was exactly what was needed. The federal government was not created to "control and restrict" interstate commerce, but to "put interstate commerce in good order" by acting as a mediator between the States when a disagreement regarding interstate commerce arises.
Politically motivated judges have defined the Commerce Clause to be something it was never intended, stating that the federal government has the authority to control and restrict interstate commerce, as per the Commerce Clause. However, there is no clause in the Constitution that gives the federal courts the authority to make that kind of decision. The power to "interpret the Constitution" is an authority the courts gave to themselves through the web of case law, and more specifically, based on opinions written by Chief Justice John Marshall during the 36 years he served on the United States Supreme Court as its Chief Justice during the first third of the nineteenth century. So, the argument that court opinions support judicial review, or court interpretation of the Constitution is an unacceptable argument, is unconstitutional.
The next portion of the commenter's argument launches into States' Rights, Slavery, and the 10th Amendment. Slavery was an issue that divided America, and something the Founding Fathers believed would resolve itself in their lifetime. The federal government was created to handle external issues (hence, the reason the Atlantic Slave Trade was outlawed by Congress through the authority granted in Article I, Section 9, and legislation enacted in 1808), and the States reserved the authority to handle local issues (which is why it was expected that with slavery the States would have to make the decision to abolish slavery within their own State, and why the federal government was never given the authority to uniformly abolish slavery until the 13th Amendment, which granted that authority to the federal government after ratification by the States).
Abraham Lincoln, known for being the President to abolish slavery, did not launch the Civil War specifically with the intent of ending slavery. The war was over States' Rights, and federal intrusion into an issue the States were supposed to resolve independently. In fact, in the South, there was a significant abolitionist movement that I believe would have led to the eventual abolition of slavery within a decade or two, had the Civil War not been fought. What this means is that if Lincoln realized slavery was on the verge of being abolished in the South (slavery was also no longer economically viable), there was another reason he had for the War Between the States.
Abraham Lincoln was a good man in a very difficult situation, but he was also a progressive. He believed in a stronger central government, and slavery was just the excuse he needed to change the States from independent, sovereign entities to a forced union of controlled States that obey the dictates of the federal government.
In Lincoln's historical debates with Senator Stephen Douglas in 1858, Lincoln did not say he wanted to free the slaves, but that he intended on "containing slavery." The bloody American Civil War was not fought to emancipate the slaves, but was a calculated move to build a stronger central government, to fundamentally transform the American form of government from one that was limited in its scope and powers to one that is a highly centralized, activist state. The Southern States rejected the idea of belonging to a national government, extolling their independence as sovereign States, while participating in unfettered free trade with other nations, and other States. Therefore, Lincoln waged a bloody war, and subverted the Constitution, in order to trample on States' rights, and so that he may be able to accomplish his goal of creating a national system, and begin the process of making the United States the next great empire.
Before the Emancipation Proclamation, which was a strategic political move to redefine the war as one about slavery to get the European countries helping the South to exit the war, the Civil War was all about enacting Lincoln's dubious agenda of sacrificing the independence of the States to the supremacy of the federal government. And when Lincoln enabled the United States to change from "The United States are" to "The United States is," he began a domino effect that has been tightening its iron fist on our republic ever since.
Lincoln began an unnecessary war in order to stomp on the Constitution, and to slay the 10th Amendment. The reality that the statists, through their stronghold in the courts, and the power seized by the executive during the Civil War, expanded the powers of the federal government, does not make the infractions against the States by the federal government, or the use of Implied Powers by federal agencies to control the States, constitutional. Historical precedent, and politically motivated court opinions, do not change the authorities in the Constitution. Only amendments can.
Finally, our commenter ventures into the realm of immigration, once again using a flawed premise as the foundation of his argument. Immigration is a concurrent issue, where both the federal government, and the States, have shared authorities regarding. In Article I, Section 9, the same clause that enabled the federal government to pass legislation to prohibit the Atlantic Slave Trade, Congress was also given the authority to pass legislation prohibiting certain persons from immigrating into the United States. The immigration laws we have on the books today grew from that clause, and the influence of the Immigration and Naturalization Act of 1790. As per the 10th Amendment, and the concept that establishes the States have original authority on all issues, and therefore if a power is not prohibited to them, the authority is reserved to them, the immigration issue is also a State issue.
The commenter refers to the Chinese Exclusion Act of 1882 as being an example of implied powers, but as indicated in Article I, Section 9 of the Constitution, that is a constitutional law, not because it is an "established constitutional procedure," but because the power to prohibit some persons from immigrating into the United States is granted to Congress in Article I, Section 9. A large reason behind giving the federal government this authority was for the purpose of "screening" incoming immigrants, and rejecting those that may not be beneficial to our homeland for reasons that may include, but are not limited to, disease, criminal history, or those that may commit acts of terror once inside the United States.
Article IV, Section 4 of the United States Constitution also tasks the federal government with protecting the States from invasion, a duty that requires securing the national border in order to be carried out (Necessary and Proper Clause, Article I, Section 8).
Meanwhile, once an immigrant, or to use the proper terminology, an "illegal alien," is inside the borders of a State, the authority over the issue shifts to the State. A State can protect its interior, and therefore immigration laws at the State level, and local enforcement of those laws, are perfectly constitutional. Federal agencies, such as ICE, or the Border Patrol, may not operate inside a State unless that State has given the federal agency permission to do so.
-- Political Pistachio Conservative News and Commentary
Finally, our commenter ventures into the realm of immigration, once again using a flawed premise as the foundation of his argument. Immigration is a concurrent issue, where both the federal government, and the States, have shared authorities regarding. In Article I, Section 9, the same clause that enabled the federal government to pass legislation to prohibit the Atlantic Slave Trade, Congress was also given the authority to pass legislation prohibiting certain persons from immigrating into the United States. The immigration laws we have on the books today grew from that clause, and the influence of the Immigration and Naturalization Act of 1790. As per the 10th Amendment, and the concept that establishes the States have original authority on all issues, and therefore if a power is not prohibited to them, the authority is reserved to them, the immigration issue is also a State issue.
The commenter refers to the Chinese Exclusion Act of 1882 as being an example of implied powers, but as indicated in Article I, Section 9 of the Constitution, that is a constitutional law, not because it is an "established constitutional procedure," but because the power to prohibit some persons from immigrating into the United States is granted to Congress in Article I, Section 9. A large reason behind giving the federal government this authority was for the purpose of "screening" incoming immigrants, and rejecting those that may not be beneficial to our homeland for reasons that may include, but are not limited to, disease, criminal history, or those that may commit acts of terror once inside the United States.
Article IV, Section 4 of the United States Constitution also tasks the federal government with protecting the States from invasion, a duty that requires securing the national border in order to be carried out (Necessary and Proper Clause, Article I, Section 8).
Meanwhile, once an immigrant, or to use the proper terminology, an "illegal alien," is inside the borders of a State, the authority over the issue shifts to the State. A State can protect its interior, and therefore immigration laws at the State level, and local enforcement of those laws, are perfectly constitutional. Federal agencies, such as ICE, or the Border Patrol, may not operate inside a State unless that State has given the federal agency permission to do so.
-- Political Pistachio Conservative News and Commentary
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